H.
B.
4364
(By Delegates Rowe, Trump, Farris and Manuel)
[Introduced February 4, 1994; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirty, article five, chapter fifty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to appellate relief in the supreme court of appeals; specifying types of orders by a circuit court that may be appealed to the supreme court of appeals by prosecuting attorneys on behalf of the state in criminal proceedings; and establishing procedures to be followed in such appeals.
Be it enacted by the Legislature of West Virginia:
That section thirty, article five, chapter fifty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§
58
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5
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30. Appeals by state in criminal proceedings.
(a) The prosecuting attorney on behalf of the state may obtain from the supreme court of appeals an appeal on issues of law from the following decision, judgment or order of the circuit court:
(1) An order or judgment quashing, setting aside or dismissing any case, indictment, information, warrant or criminal complaint or any count or portion thereof;
(2) An order granting a new trial;
(3) An order arresting judgment;
(4) A sentence or order of probation on the ground that it is not authorized by law;
(5) A pretrial order preventing the prosecution from obtaining evidence or an order granting a motion for the suppression or exclusion of evidence, or an order granting a motion limiting the use of evidence, including, but not limited to, physical evidence, identifications and confessions, or admissions or an order requiring the return of seized property, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information.
(b) A ruling adverse to the state on a question of law may be cross-assigned as error on appeal, if the defendant was convicted and appeals from the judgment.
(c) Appeals pursuant to subsection (a) subdivision (5) of this section may be taken only when the prosecuting attorney certifies that the appeal is not taken for the purpose of delay and that the evidence affected by the circuit court's order constitutes substantial proof of a fact material in the proceedings. Interlocutory appeals filed pursuant hereto shall be given priority if accepted for review by the supreme court of appeals and the supreme court of appeals may, by rule of appellate procedure provide for an expedited procedure in interlocutory appeals brought pursuant to subsection (a) subdivision (5) of this section.
(d) Appeals by the state shall be filed with the clerk of the circuit court having original jurisdiction within thirty days of the entry of the circuit court order or the ruling made in court, whichever is earlier.
(e) Pending the disposition of an appeal pursuant to this section, all other proceedings in the case which are affected by the order or ruling, including trial, shall be stayed and all statutory speedy trial provisions running against the state, including the provisions of sections one and twenty-one of article three, chapter sixty-two of this code, shall be tolled pending the disposition of the appeal by the supreme court of appeals.
(f) If the state appeals pursuant to this section and the defendant is on bail, he or she shall be permitted to remain at large pursuant to the terms of the existing bail. If the defendant is in custody or if the appeal is from an order which would terminate the prosecution, he or she, on request, is entitled to a prompt reconsideration of the amount, terms and conditions of bail or recognizance.
(g) The rules of appellate procedure for the West Virginia supreme court of appeals apply to petitions by the state for review pursuant to this section, except as otherwise provided herein.
(h) A defendant has full appellate rights to defend against any petition or appeal initiated by the state, and he or she may cross-allege errors as to any orders or judgments appealed by the state. The defendant shall have the right to representation by counsel and if indigent shall be represented by court-appointed counsel without cost during the appellate proceedings, if requested by the defendant.
NOTE: The purpose of this bill is to permit prosecuting attorneys to appeal specified orders of the circuit courts to the West Virginia Supreme Court of Appeals on behalf of the state in criminal matters. The bill also designated procedures to be followed in such appeals.
This section has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.
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